Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Sherman

Court of Appeals of Arizona, First Division

November 1, 2016

In re the Matter of: ANTONELLA SHERMAN, Petitioner/Appellee,
v.
DEREK S. SHERMAN, Respondent/Appellant.

         Appeal from the Superior Court in Yavapai County No. P1300DO201300139 The Honorable Joseph P. Goldstein, Judge Pro Tempore AFFIRMED IN PART, VACATED IN PART

          Brown Hanna & Mull, PLLC, Prescott By John G. Mull Counsel for Petitioner/Appellee

          Law Offices of Robert L. Frugé, P.C., Prescott By Robert L. Frugé Counsel for Respondent/Appellant

          Presiding Judge Peter B. Swann delivered the opinion of the Court, in which Judge Lawrence F. Winthrop and Judge Donn Kessler joined.

          OPINION

          SWANN, Judge

         ¶1 Derek S. Sherman ("Father") challenges portions of a dissolution decree that attributed income to him for purposes of determining child support and awarding spousal maintenance to Antonella Sherman ("Mother").

         ¶2 We affirm the child support award. The superior court did not err by attributing income to Father despite his involuntary unemployment, and did not err by including as income loan proceeds that Father used to pay his living and medical expenses.

         ¶3 We vacate the spousal maintenance award. The court entered a nominal maintenance award to account for its speculation that Father might someday be able to return to work. This was error. We hold that a nominal spousal maintenance award may not be used to "hold the door open" for the possibility that a meaningful award might later become appropriate.

         FACTS AND PROCEDURAL HISTORY

         ¶4 Father and Mother married in 2001, and had three children together. Mother petitioned for dissolution of the marriage in February 2013.

         ¶5 In January 2014, Father suffered a serious medical event that rendered him unable to work in his previous occupation. He received short-term disability payments from his employer until July 2014. In May 2014, he entered a revolving credit agreement with his cousin and her husband. The agreement authorized him to withdraw up to $100, 000 for ordinary and necessary essential personal expenses. By the time of trial in November 2014, Father had already used approximately $35, 000 of the available funds.

         ¶6 In its order dissolving the parties' marriage, the superior court found that Father was not intentionally unemployed or underemployed. The court further found, however, that Father had "not shown any significant change to his lifestyle or expenditures, " and "[i]t does not appear credible that Father would spend one-third of his available credit line in only six months if he did not expect to return to work or have the debt forgiven." The court therefore concluded that for purposes of calculating child support, Father should be attributed monthly gross income in the amount of the average monthly deposits to his checking account over the previous six months, the majority of which came from the line of credit. The court ordered Father to pay child support in the amount of $675 per month.

         ¶7 The court further ordered Father to pay spousal maintenance in the amount of $50 per month for 48 months, and denied his request for spousal maintenance. The court found that both spouses lacked sufficient property to provide for their reasonable needs, and that Father was currently unable to be self-sufficient through appropriate employment but had historically earned significant income and might someday be able to return to "some sort of employment." The court concluded that because "sufficient factors necessary to make th[e] determination [of the propriety of spousal maintenance] did not exist at the time of trial[, a] nominal award of spousal maintenance should be awarded so that this issue may be revisited at the appropriate time."

         ¶8 Father appeals the child support and spousal ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.